Rex v Forster (Criminal Appeal No. 293 of 1943) [1944] EACA 7 (1 January 1944)

## APPELLATE CRIMINAL

## Before Sir JOSEPH SHERIDAN, C. J., and BARTLEY, J.

REX, Respondent (Original Prosecutor)

## RICHARD CAMPBELL FORSTER, Appellant (Original Accused) Criminal Appeal No. 293 of 1943

## Special Police Officer—Appointment—Refusal to make declaration—Police Ordinance, 1930, section 70.

Held (29-3-44).—That the accused, having been legally ordered by the Director of Man-<br>power to report to the Superintendent of Police, Nairobi, for the purpose of being enrolled in the special police, and having failed to comply with that order by refusing<br>to make the declaration required of a special police constable by section 70 of the<br>Police Ordinance; 1930, had committed an offence.

Appellant in person.

Phillips. Crown Counsel, for the Crown.

JUDGMENT.—The appellant was convicted of failing to comply with an order issued by the Director of Manpower under section 22<sub>A</sub> of the Kenya Defence Force Ordinance, 1937, in that he being, a member of the Kenya Defence Force and not having been called out or mobilized, was ordered by the Director of Manpower to report to the Superintendent of Police, Nairobi, for the purpose of being enrolled in the Special Police and that he failed to comply with that order in that the refused to sign the declaration under section 70 of the Police Ordinance, 1930.

There is no doubt, and the appellant does not dispute, that the order of the Director of Manpower requiring the appellant to do Special Police duties was a lawful order under section 22A of the Kenya Defence Force Ordinance. 1937. The appellant refused to sign the declaration set out in section 70 of the Police Ordinance which declaration has to be subscribed to by every special constable. Under section 70 (4) of the Police Ordinance it is only on a special constable making the required declaration that he is by law given the powers, privileges and profection of police constables. By refusing to sign the declaration the appellant clearly disobeved the order of the Director of Manpower. The appellant submitted that there was no specific law in the Colony making it compulsory for a British subject to take the oath of allegiance to His Majesty the King or to sign the declaration prescribed by section 70 of the Police Ordinance, 1930.

In his evidence in the Magistrate's Court he stated that he was unable to discover that either the British Government or the Kenya Government had ever passed a law making this declaration or similar declaration compulsory and he averred that on the other hand whenever services were compulsory the Government has significantly omitted any requirement such as this declaration from the laws concerned so far as conscripts are concerned. It is only necessary to refer to section 7 of the Special Constables Act, 1831, to refute this contention so far as England is concerned and section 70 (3) of the Police Ordinance, 1930, clearly compels a person appointed as special constable making the required declaration whether he is a volunteer or a conscript.

The appellant stated that he had refused to sign the declaration as a matter of principle because he discovered that were he to be appointed a special constable he would receive no remuneration for his services to which remuneration he was entitled under section 22D of the Kenya Defence Force Ordinance, 1939. We see no substance in that submission. If the appellant were legally entitled to remuneration he could of course enforce his right.

We dismiss the appeal against both the conviction and the sentence, the latter in the circumstances being reasonable.